Do you know what your agency bylaws are?

If you’re being surveyed by HCFA, you’d better

All the recent hyperventilation in Washington among politicians and bureaucrats competing to see who can shout "fraud and abuse" the loudest has a tendency to drown out the voice of reason. But then, when politicians speak about Medicare, reasonably or otherwise, the news media listen and take note.

The Justice Department has declared health care fraud the "crime of the ‘90s," saying it costs tens of billions of dollars annually. Whether committed by laboratories, home care companies, doctors, or hospitals, outright fraud may account for as much as 10% of all U.S. health care spending, or $100 billion a year, according to the General Accounting Office.

However, Eric Sokol, assistant director for government affairs for the National Association for Home Care in Washington, calls this feeding frenzy a "mischaracterization of the amount of fraud in the home health benefit."

Citing a recent Department of Health and Human Services report (see Hospital Home Health, September 1997, p. 106), in which it was reported that 40% of home health claims in four states were unallowable, Sokol says the figure "is really 40% of inappropriate billing. But there is a failure, both within the media and with the government agencies, to distinguish technical noncompliance with Medicare rules from intentional fraud."

Clearly some home care industry people have crossed the line. Consider the case of Jack Mills, imprisoned former owner of ABC Health Care (see HHH, September 1997, p. 104). But the fear in the industry now is that almost anything can be considered sinister.

A recent conversation with a director of a medium-sized hospital-based home health agency in California provides some insight into the thinking of the Department of Health and Human Services these days. During a recent Medicare survey, conducted by the state on behalf of the Health Care Financing Administration, three condition-level deficiencies were cited. None had anything to do with patient care, but the attitude of the surveyors was alarming, according to the director.

"It was a survey based on ORT [Operation Restore Trust], not the standard survey method. It took the same approach as ORT," she says. "It was not an annual survey, not for certification or recertification. They were picking up on things they never found before."

Calling it a "federally directed extended survey," the director says the agency was given 30 days, Aug. 6 to Sept. 6, to fix things before surveyors return.

Hospital Home Health was unsuccessful in attempts to reach HCFA for comment.

The administrative shortcomings cited had to do with standard 484.14(b) of the Medicare Home Health Conditions of Participation, which concerns an agency’s governing body. It was found, according the director, that the agency did not have its own bylaws or demonstrate a link with the hospital governing body through annual review of the hospital’s bylaws. Therefore, the agency was out of compliance. The agency also was cited because the doctor had failed to sign the sign-in sheet for a meeting of the Professional Advisory Committee; no proof of a medical advisor, the surveyor said.

Although the deficiencies were all administrative, the whole experience has caused turmoil in the agency. According to the director, "It takes away from providing care for our patients. And dealing with regulatory matters is very costly."

Experts tell HHH that a hospital-based agency does not have to have separate bylaws or mission statement if it uses the hospital’s Medicare provider number. If the agency has its own provider number, however, it must have its own bylaws. The director of the California agency says her agency uses the hospital’s provi der number.

"It’s a fine line," one insider explains. "Home care is unlike other departments of the hospital, like medical records or the pharmacy. If you have your own provider number, you must operate your business as a separate provider. You are separate from the hospital’s license, you develop your own mission statement, and you have separate bylaws and a separate professional advisory committee."

The California agency director explains that the shortcomings will be fixed in time, but with the specter of ORT hanging in the air, she doesn’t know what to expect. Presumably, the surveyors could still find other deficiencies or nit-pick about the current ones. "Who knows?" she says. "They may concentrate on those or go on to something else."